What follows is a revised version of a paper I submitted in law school. Anyone who is a witness to my daily experience of censorship and cybercrime will agree that much American rhetoric about law is propaganda, if not blatant lies. Nevertheless, I am still best classified as an American "Revolutionary Constitutionalist," struggling to persuade America's many corrupt courts and politicians to abide by the principles of that priceless charter of government. Thus far, my success in this effort is limited or non-existent. Some day Americans will be fully free and equal, unafraid of their government, and respectful of tribunals that are worthy of respect. That day may be in the very distant future. ("Law and Ethics in the Soprano State" and "Corrupt Law Firms, Senator Bob, and New Jersey Ethics.")
All footnotes have been omitted out of compassion for readers. This essay is long and difficult, I am told, and not for the uninitiated. I cannot be sure that I will be able to post this essay at my MSN group. I will struggle to continue writing and making my work available, mostly free of charge, to others who are interested in what I have to say. The date of the original essay is May 1, 1985.
On the first day that I posted this essay, the text was defaced and corrected several times. I will do my best to make all necessary corrections of anticipated vandalism and inserted "errors" as often as needed. ("Is Senator Menendez a Suspect in Mafia-Political Murder in New Jersey?")
March 30, 2009 at 4:54 P.M. "errors" and defacements of this essay and (probably) other writings require me to make corrections again. I will do my best to revise periodically as "errors" are reinserted in this work in order to maximize the frustration effect and emotional harm upon me. The disabling of the measure of "visitors" to this site in my profile is meant to convey the message that no one is reading these writings "approximately." Maybe they will tamper with the numbers again: See Assata Shakur, "Prisoner in the United States," in Still Black, Still Strong: Survivors of the War Against Black Revolutionaries (New York & Paris: Columbia University-Semiotexte, 1993), pp. 205-220. (Ms. Shakur was subjected to psychological torture in New Jersey's legal system, probably by the same people who have injured me and, very likely, at the secret request and/or with the knowledge of New Jersey's tainted Supreme Court or other tribunals. Torture is not a new story in American law.)
November 5, 2009 at 1:52 P.M. call from 1-323-330-1433. Florida? Earlier I received calls ostensibly from Pennsylvania. Suppression and censorship of my creative and philosophical work -- together with denials of the use of images -- is intended to damage "affective capacities," or the ability to "trust" others by instilling defensiveness and hostility in all encounters with new persons and anxiety about reviewing my written work because I will discover new "errors" constantly inserted and reinserted in these essays. The goal is always to "maximize psychological harm to the victim." The harassment and rage at sanctioned cruelty as well as injustice is intended to produce a violent reaction (or obscene speech) that may serve to legitimate further atrocities committed against the victim. These tactics are commonly used against inmates in American prisons. Permanent harm is the desired and expected outcome of prolonged use of such methods against anyone according to psychological protocols that have come to light after America's torture scandals. ("Foucault, Rose, Davis and the Meaning(s) of Prison.")
When combined with economic or social pressures, years of stigmatizing, and worse tactics of "disconfirmation of identity," assault or rape, manipulation of family members, or theft, the effects on the victim's life can be and are intended to be devastating, socially and financially. They are more likely to be devastating when added to childhood trauma and other great losses in life. Please see: Alfred W. McCoy, CIA Interrogation, From the Cold War to the War on Terror (New York: Henry Holt, 2006), pp. 21-188. ("What is it like to be tortured?")
No water today. Several appliances were mysteriously damaged while I was away in Boston, probably only a coincidence.
These "touchless torture" tactics are set forth in: "KUBARK: Counterintelligence Interrogation -- July 1963" and "Human Resource Exploitation Training Manual -- 1983," both are cited in Mark Danner, "US Torture: Voices From the Black Sites," New York Review of Books, March 29, 2009, at p. 69, p.72 and Mark Danner, "The Red Cross Report on Torture and What it Means for the U.S.," New York Review of Books, April 30, 2009, p. 48. (Italics may be removed at any time because of damage to my computer caused by N.J. hackers.)
As of September 24, 2009 at 9:14 A.M. "Errors" are still inserted, on a daily basis, in these writings in violation of copyright laws and the U.S. Constitution. My second book is suppressed, images are blocked, MSN is closed to me, orchestrated media silence in America prevents public attention from being focused on these censorship and frustration tactics making use of government power and resources in New Jersey: Andrew Sullivan, "Dear Mr. Bush, You Approved Torture -- Only You Can Fix the Damage," in The Atlantic, October, 2009, at p. 78 and Philippe Sands, "Torture -- The Complicit General," in The New York Review of Books, September 24, 2009, at p. 20. http://www.nybooks.com/ then David Cole, "The Case Against the Torture Memo Lawyers," in The New York Review of Books, October 8, 2009, at p. 14. ("Jay Romano and Conduct Unbecoming to the Judiciary in New Jersey.")
Use of these unspeakable methods against alleged "subhumans," like myself or "the little brown people," is O.K. with many American government officials, possibly including former Vice President Dick Cheney or the Trump administration. ("Maurice J. Gallipoli and Conduct Unbecoming to the Judiciary in New Jersey" and "An Open Letter to My Torturers in New Jersey, Terry Tuchin and Diana Lisa Riccioli.")
This psychological "method" suggests the participation of Right-wing Cubans, Batistoides, in hacking attacks. These are usually Miami or Union City persons with ex-C.I.A. credentials acting on behalf of Cuban-American politicians, or possibly simply for money, as private contractors for the so-called Florida "mafia."
Censorship, as I experience it, usually takes place with the blessings of N.J. judges -- such as Stuart Rabner -- who are sworn to uphold the U.S. Constitution. The sad and cruel spectacle of DEFECATION on the U.S. Constitution is only possible because of the apathy of guilty bystanders in New Jersey. ("Time to End the Embargo Against Cuba.")
If given the opportunity to discuss these matters with Cuban (or international) media I will focus on the specific actions of politicians and attorneys in the Cuban-American community. I will name the individuals in the legal profession and, happily, discuss N.J. legal opinions and actions that merit ethics sanctions or worse.
For a follow-up analysis of America's efforts on the torture front, see Scott Shane & Mark Mazzetti, "In Adopting Harsh Tactics, No Inquiry Into Past Use," in The New York Times, April 22, 2009, at p. A1.
Introduction.
Roberto Unger is probably the most original social and legal theorist working in the American legal academy.
Unger is also highly controversial and often misunderstood. Several law review articles analyzing his work have appeared, and his influence has spread to Europe and Latin America. On both continents and elsewhere scholars are engaged in the kind of political analysis of legal doctrine which is rightly associated with the Critical Legal Studies (CLS) movement of which Unger is an important member.
Unger has been facetiously described as the "Christ figure" and Duncan Kennedy as the "Pope" of CLS.
It is time that Roberto Unger received the serious attention of the law school community and philosophical professionals as well as literary-political journalists. Law students would do well to understand Unger's ideas because Unger's form of theorizing has gradually spread beyond the universities to affect cultural theory as well as the practice of politics and law.
Unger is one of the few thinkers shaping the attitudes and influencing the values of a whole generation of progressive lawyers, judges, politicians and artists.
I see Mr. Lula's presidency in Brazil as the realization of many of Unger's hopes in the eighties which have come crashing down on us in the second decade of the twenty-first century.
This is not to suggest that busy practitioners are rushing to read Knowledge and Politics, much less Unger's long, complex, highly abstract and difficult manifesto in the Harvard Law Review.
I am suggesting that by providing the theoretical foundations for a new radical critique of American legal orthodoxy Unger has influenced the thinking of many young CLS members and law students -- also radicals in different parts of the world -- who are increasingly dissatisfied with neoliberalism and globalization.
The antiliberal consensus on the Left is one fruitful area for a fusion of Unger's and Chomsky's writings.
To young lawyers in the movement for reform of America's legal institutions Unger is extremely important, in the way that Marx and Lenin were important to the Russian revolutionaries, or as Locke was important to America's rebels, or as Castro and Guevara remain crucial to the Cuban uprising of 1959 leading to that nation's continuing revolution.
To understand Unger's elaborate critique is also, partly, to understand (I continue to hope) how law may be practiced and taught in the future. ("Fidel Castro's 'History Will Absolve Me'" and "'Che': A Movie Review.")
A complete summary of Unger's views is not possible given the limitations of this essay. I can never be sure of whether I will be able to post my writings before the Internet "closes" again. The struggle against fascism and censorship emanating from Miami or Union City's Cubanazos and their Mafia friends is always intense.
In any case I do not claim to understand Unger's work well enough to provide such a summary.
The modest purpose of this brief paper, therefore, is to provide a sketchy outline of Unger's position while trying to explain its importance for CLS and Unger's later political thinking in his three volume magnum opus Politics: A Work in Constructive Social Theory.
This essay is divided into two parts: The first section deals with Unger's critique of liberalism; the second with his early social/political theory based on hints for a new "philosophical anthropology" set forth in Passion: An Essay on Personality.
The liberalism to which Unger refers is not the left-leaning wing of the American Democratic party which is associated with the word "liberal" in U.S. politics. Unger's target is the much larger "philosophy of liberty" emerging with the scientific revolution and Modernity that found its greatest expression in the French and American revolutions.
My discovery of David P. Walsh's philosophical writings came too late to improve this essay. Professor Walsh's philosophical work is recommended to law students and scholars in the humanities. David Walsh, The Modern Philosophical Revolution: The Luminosity of Existence (Cambridge: Cambridge University Press, 2008), pp. 1-27, pp. 335-391. (" ... philosophy, beginning with Kant, has explicitly shifted from an account of entities and concepts to an existential meditation on the horizon within which it finds itself.")
For a useful comparison to Unger's and Duncan Kennedy's writings on radical legal interpretation, see Hans-George Gadamer, Philosophical Hermeneutics (Berkeley: University of California Press, 1976).
I. Social Critique.
Modern political philosophy begins with the rejection of Aristotle's first principle of human nature. For Aristotle "man has a natural social inclination" which is best revealed in "his need for political life." The obvious sources are the Politics, especially Book III; also, Books I-III, V ("Justice") and Book X of The Nichomachean Ethics.
While often described as a communitarian theorist Plato is anything but an admirer of democracy. Not only is this clear in The Republic it is also reinforced by the "Athenian stranger" (an alter ego for Socrates) in Plato's final dialogue The Laws.
Classical liberal thinkers -- mostly seventeenth century philosophers -- struggling to escape the influence of the Medieval interpretation of Aristotle offered a different picture of human nature to coincide with the Newtonian scientific revolution, Protestantism, mercantilism as well as the first tentative steps towards the industrial revolution.
Modernity begins with the individualistic inclination, that is, the drive to satisfy self-regarding desires (Cogito) which, we are told, exist before government is "imposed" upon the residents of society. The very notion of an "individual" in a political-legal sense is a modern invention. According to Thomas Hobbes, for example, reason cannot control desire in the "state of nature." (See Leviathan and A Dialogue Between a Philosopher and a Master of the Common Laws of England.)
There is no "innate" morality, ethics, or natural law "in Hobbes' pre-political situation" (state of nature) -- except for the principle of survival.
Persons are grasping, ambitious, interested only in attaining personal goals, equally able to harm one another. As a result the "prepolitical situation" is defined by fierce competition and conflict. A "War of All Against All" erupts which is, among other things, inefficient.
This is very much like American law schools.
Everyone is afraid of losing his or her life or property. Accordingly, an agreement (Social Contract or Constitution) is made to give absolute power to a Sovereign who will impose and keep the peace often by brutal force. ("John Rawls and Justice.")
Hobbes and Locke capitalize the word "Sovereign" -- perhaps, in the aftermath of the English civil war both philosophers hoped, sensibly, to avoid "displeasing" the monarch.
Hobbes' solution is unsatisfactory, however, because people soon discover that the "Absolute Sovereign" poses a far greater risk to personal safety and property than the struggle of all against all. This grim lesson is reinforced for Americans in the "Age of Trump."
For Hobbes there may be less real security or peace for any single subject since each person may be killed by the monarch, at any time, even if there is a collective gain in "security." Perhaps this is a thought for the masters of the NSA to keep in mind: Security is not the only virtue in a free society.
Locke's solution to this dilemma of legitimacy and authority in government as against security for the polis -- with some peripheral revisions and alterations -- is still the basis of contemporary liberal political thought.
Locke contends that in order to protect "natural rights" (this is a concept that becomes important in all later political and legal thought, rights aligned with the human nature of "individuals") the Sovereign should be placed under "the rule of law." Ultimate power will be deposited not in the hands of any individual, but in institutions and a set of practices set forth in a fundamental charter of government, a "Social Contract" or Constitution. ("Law and Literature.")
To prevent the ruler from imposing his or her values (which are the subjective and arbitrary products of that person's desires) on everybody else, clear, specific, neutral and impersonal rules must be created which will provide little discretion or room for arbitrariness. (Personally, I like arbitrariness.)
"Subjects," we are told, must be ruled "by laws and not by men or women." Hence, the commitment to "the rule of law."
The problem with Locke's approach is that rules are written by human beings -- who are incapable of ultimate neutrality -- to accomplish some purpose(s) and should be applied with that purpose(s) in mind. ("What is law?")
Rules must embody community choices or a legislature's values. No matter how carefully drafted, rules cannot cover every situation that may arise in the future. There will inevitably be gaps in the laws and a need for interpretation. ("Ronald Dworkin On Law as Interpretation.")
Liberalism postulates that, in ambiguous cases where interpretation is needed or required, the administrator of the laws can still operate "under the law."
Officials may analyze any factual problem, for example, in terms of the policy or purpose of the relevant rule -- the policy or purpose is, in some sense, enacted into positive law with the relevant statutory provision, or other rule -- and there need not be any resort to "personal" preferences or "subjective" whims, merely a particular specification of "the spirit of the laws." (Montesquieu, Madison, Jefferson.)
This "interpretivist" approach to the resolution of "hard cases" (Ronald Dworkin) in adjudication is important and innovative in American legal thinking.
The goal of legal interpretation should be to effectuate the principles in legal doctrine and the policies served by statutes.
Americans think of law (mostly) in terms of cases, problem-solving, ad hoc patches and bandages, law is practical problem solving; Europeans and Latin Americans think of law (usually) in terms of abstract constructs and uniformity, or neatness of patterns of decisions, "codes," law is a theoretical system.
Each group of legal thinkers is filled with contempt for the views of the others.
I agree with all of them.
Liberal philosophy has become the reigning orthodoxy in the Western world and beyond: "History has ended," Fukuyama tells us, liberalism is the best that we can do with regard to the problem of government. This is what Unger calls: "False Necessity."
Unger is unpersuaded by this claim. Unger is confident that history has not ended and that a new system of thought should be developed -- drawing on the doubts of Ricoeur's "Masters of Suspicion" (Marx, Nietzsche, Freud) -- to better reflect our historical moment.
Unger has made an effort to disclaim Hegelianism. It is also true that Kant's Critical Theory is a specific target of his critique in Knowledge and Politics, as we shall see. Nevertheless, both classical German philosophers and Christian-Romantic idealism are powerful forces in Unger's work.
I urge Professor Unger to study the writings of F.H. Bradley as reformulated and defended recently by Oxford's W.J. Mander and others.
For Unger, liberalism or Modernity is "incoherent" and leads to bankrupt dichotomies like "subjective/objective." Thinking about jurisprudential, social, or political problems within the "model of Modernity" -- especially in places distant from, say, New England -- may be self-defeating or absurd.
You may begin to see the difficulties with the notion of "exporting" American democracy to, let us say, Iraq. Pakistan is heating up this week as predicted in my essays. A crisis and revolutionary movement is being led by lawyers in Pakistan. This is something which is inconceivable in the American context.
How and whom do Pakistani lawyers bill for their revolutionary efforts?
The ABA does not approve of this experiment in Pakistan.
"The house of reason in which I was working proved to be a prison house of paradox whose rooms did not connect and whose passage ways led nowhere. ... The premises of this vision of the world are few; they are as powerful in their hold over the mind as they are unacknowledged and forgotten. They took their classic form in the seventeenth century. ... I resolved to call them the liberal doctrine [Modernity] even though the area they include is both broader and narrower than what we ordinarily take for liberalism. This system of ideas is indeed the guard that watches over the prison house."
Knowledge and Politics (New York: New Press, 1975), p. 3.
In light of this paragraph the concluding words of Unger's CLS manifesto become highly poignant:
"When we came, they [U.S. lawyers] were like a priesthood that had lost their faith and kept their jobs. They stood in tedious embarrassment before cold altars. But we turned away from those altars and found the mind's opportunity in the heart's revenge."
"The Critical Legal Studies Movement," in 96 Harv. L. Rev. 561, 675 (1983) (emphasis added).
Think of the latest photo of New Jersey's Supreme Court justices when you read that foregoing paragraph. ("New Jersey's Feces-Covered Supreme Court.")
Unger argues for a connection between knowledge and politics, a continuity between ideas of what can be known (epistemology) and of how societies may be organized (the metaphysics of political forms).
Liberalism provides a theory of knowledge and human nature (liberal psychology) linked to a corresponding set of political principles (liberal political theory).
The entire system of ideas can be reduced, according to Unger, to these few interdependent principles of knowledge and politics. If you remove one of these pillars the entire structure collapses. ("Nihilists in Disneyworld.")
Liberal psychology is based on the "antinomy of reason and desire." According to this idea, human personality is divided into reason, understanding, or thought (objectivity), on the one hand; and desire, feeling, or sentiment (subjectivity), on the other hand.
Within the terms of the "liberal doctrine" (Modernity) reason does not choose ends. The choice of ends must be a matter of arbitrary desire or emotional preference. Reason only finds the best means to achieving desired ends. Hobbes, Hume, even Locke to some degree all the way to Bentham, Mill, Russell adhere to such dominant views. No one disputes that there have been dissident philosophers, including F.H. Bradley and Mary Whiton Calkins, arguing against these propositions. ("David Hume's Philosophical Romance.")
Liberal political theory is based on the analogous "duality of rules and values." In the liberal scheme, values are the products of desire and, therefore, subjective. Rules can be reasonable and universally applicable, objective, but nevertheless must embody some values, thus inevitably containing a subjective component that will always require interpretation. Rules cannot be completely neutral.
The distinction between rules and values is a jurisprudential application of the more fundamental and ancient antinomy of universals and particulars. This metaphysical antinomy holds that to generalize a proposition is to make it less determinate in concrete cases. Aristotle calls this the tension between "law and equity" and identifies the problem as central to all legal systems concerned with justice.
Values are general. Rules are specific. Liberal legal systems require rules of general applicability yielding certainty of result. This is a contradictory or impossible goal, however, because to the extent that laws are abstract (or universal) they will be useless or of diminished value in particular cases (or controversies).
To be effective a critique must simultaneously challenge both aspects of liberal thought or the "Project of Modernity."
References to Jurgen Habermas and the defense of Modernity as an "unfinished adventure" should be considered at this point.
It is important to question both the idea that "reason is a slave of the passions" (Hume) together with the notion that values are inevitably subjective while rules may be objective. The intellectual war on all fronts against Modernity is Unger's "total criticism." ("Judith Butler and Gender Theory.")
The continuity with Kant's Critical Theory leading to Marx by way of Hegel is clear to me. Despite Unger's qualifications and disclaimers idealism is important to his mature philosophical position as is the phenomenological-hermeneutic tradition. Those who may not realize Kant's revolutionary importance will do well to recall the reception given to Critical Theory in the 1790s:
"Heine may have compared Kant to Robespierre for the bold radicalism of his thinking, but their revolutions were not on par. The Enlightenment in England [-- also America --] and France fostered a hard-headed visionary realism. In Germany, it had to settle for an abstract idealism, an enlightenment of the spirit only, [Latin America today is experiencing such a "revolution of the spirit" by way of liberation theology because there is very little economic revolution for the poor of the continent.] ... "
Robert C. Solomon, "Kant and the German Enlightenment," in Continental Philosophy Since 1750: The Rise and Fall of the Self (Oxford: Oxford University Press, 1988), p. 25 and Manfred Khuen, Kant: A Biography (Cambridge: Cambridge University Press, 2001), pp. 238-326 ("All Crushing Critic of Metaphysics!").
There is a direct line from Kant's Critical Theory to Revolutionary Marxism.
One of my difficulties with Unger's work is what I perceive to be his under-appreciation of the potential emancipation contained within the Kantian tradition of American legal and political thought recently found in the works of Rawls, Nozick, Dworkin.
Unger's most significant contribution to CLS is in terms of theoretical foundations -- idealism or spiritual revolution -- and also his method of comprehensive critique.
Most CLS members work on a microcosmic scale ("trashing") by adjusting or attacking the system at the margins in particular cases.
Unger challenges the entire network of concepts known as traditional or classical legal theory -- which really, again, only dates from the seventeenth century -- arguing for the logical and ethical "bankruptcy" of the total theory given today's challenges.
Notice that this observation of theoretical paradoxes in liberalism does not preclude criticisms of Marxism in Russia or anyplace else, nor does anything that I have said prevent you from expressing outrage at Stalin's gulags.
Alasdair MacIntyre, Michel Foucault, and numerous other top thinkers may be aligned with Unger's Christian and/or Romantic and postmodernist project from very different directions.
Radical practitioners prefer to take a single doctrine, from any area of law, which purports to be neutral and objective, in order to show that it is not only just as easily characterized as "subjective" (arbitrary in liberal terms), but actually a "mask for oppression." This practice is known as "trashing":
"Here's one account of the technique that we in Critical Legal Studies often use in analyzing legal texts, a technique I call 'trashing': Take specific arguments very seriously in their own terms; discover they are actually foolish ... ; and then look for some external observer's order ... in the internally contradictory, incoherent chaos we've exposed."
Mark Kelman, "Trashing," 36 Stan. L. Rev. 293 (1984).
I am aware that this will seem very odd, but if you think of legal reasoning and adjudication as containing an aesthetic as well as political component the relationship between Terry Eagleton, "The Kantian Imaginary," in The Ideology of the Aesthetic (Oxford: Basil Blackwell, 1990), pp. 78-79 ("Human beings live simultaneously as free subjects and determined objects, slaves in nature to laws which have no bearing on them in the spirit.") with Paul Guyer, "Free and Adherent Beauty: A Modest Proposal," in Values of Beauty: Historical Essays in Aesthetics Cambridge: Cambridge University Press, 2005), p. 135 ("Kant suggests that in the case of adherent beauty, there is a combination of two independent pleasures, a pleasure in the pure beauty of the object on the one hand and on the other hand a pleasure in its goodness or perfection in accordance with some end."), then the aesthetic "pleasure" in adjudication may involve getting things "right" in terms of the ultimate ends of all legality, which is justice. Paul Guyer, Kant (New York & London: Routledge, 2006), pp. 240-247. (Kant's philosophy of law and then see "Ronald Dworkin's Jurisprudence of Interpretation" and "Ronald Dworkin Says: 'The Law Works Itself Pure.'").)
Objections can be raised at this juncture: If classical liberalism or Modernity is a "prison house of paradox" how can this "worldview" be reduced to a set of logically-related ideas? How can there be a fundamental logical unity in liberal thought when the entire philosophy is said to be incoherent? If this view of the world is fully dominant and pervasive how is it possible to criticize the liberal view in any form or from any one person's perspective?
The sense that liberalism or modern thought is unsatisfactory must be one indication that Modernity no longer has such a firm grip on the mind. Hegel again. History is far from being at an end. Furthermore, it appears that history has a tendency to be "born again" in a new guise each morning.
Dialectics seems to lead to a familiar hermeneutic circle.
This is not to give up objectivity, universality, or truth; it is only to outgrow an outdated understanding of all of these concepts. ("Charles Taylor and Modernity" and "How can we be Moderns again?")
Is "total criticism" humanly possible -- for persons other than Unger -- for finite persons with partial perspectives? Can philosophers or lawyers become sufficiently "detached" or "skeptical" enough to view from a distance and judge the culture and historical age into which they are born? Is it possible for a person to achieve a critical examination of the ideas and beliefs which shape his or her own mind? Do we ever succeed in fully understanding ourselves? Should we attempt such an understanding? How can we become free without such an understanding?
To pose these questions is to find oneself trapped in the postmodern labyrinth. ("Can you lie to yourself?")
The philosophers I find most fascinating embody this tension between destructive and constructive tendencies. For example Kant is the "destroyer of metaphysics" who anticipates Romanticism and also the inventor of Enlightenment Modernity.
A similar duality exists in Unger's social thinking: total criticism is combined with Christian Romanticism and an idealized as well as spiritualized Marxism that seeks to rescue key values of the "Enlightenment Project." ("Is truth dead?")
Unger has answers to these objections. For one thing, he explains that the unity of liberalism which he is attacking is not the formal logical unity of a well-structured single argument or set of arguments -- Unger's critique has nothing to do with causality, syllogisms, or the familiar rhetorical modes of lawyers. Rather, as with most of the great philosophical system-builders, Unger's concern is with the theme of the modern worldview considered as a successful work of art. ("Guerrilla Aesthetics and the Lobotomizing of the American Mind.")
An artistic masterpiece -- like a systematic philosophy -- calls for a critical method of "appositeness or symbolic interpretation" or a kind of "Gestalt-interpretation":
"Somewhat as one might speak of the 'theme' of a work of art, Unger speaks of the liberal doctrine as the animating center of modern society, as a hidden framework of ideas, a 'deep structure' which determines the opportunities for thought available to us within a given vision of the world."
Harries, "Book Review of Knowledge and Politics," 85 Yale L. Journal 847, at pp. 848-849.
Unger acknowledges that the idea of total criticism is only meaningful because liberalism is an essentially inadequate "picture" of reality and irreconcilable with much in modern/postmodern thought:
"Only because we are men [persons] as well as liberals," Unger writes, "can we meaningfully criticize the liberal doctrine." Knowledge and Politics, p. 198.
At the highest or most encompassing level total criticism must remain an unattainable ideal.
Only God can completely transcend human epistemological and (especially) perspectival constraints (Nietzsche) -- this is Unger's claim of epistemological humility (Kant) -- not an ontological proposition exhausting the categorical options.
Kant and Hegel are visible, again, under the surface of Unger's thinking at several crucial sections of his argument.
Granted, only God is beyond history and capable of genuine total criticism. Nonetheless, something like total criticism is humanly possible beginning with the rejection of the liberal method.
Unger insists that the liberal "principle of analysis is the enemy of revolution." According to that principle a "whole can be understood as the sum of its parts." By breaking down the liberal doctrine into its various aspects a complete and successful criticism or understanding of it becomes impossible.
Unger proposes instead to follow his own "principle of totality" which views liberalism as an all-encompassing whole.
Unger's comprehensive analysis is conducted on two levels simultaneously: The first is internal and is concerned with whether this view of the world is coherent on its own terms; the second is external, challenging the basic assumptions and ideals which form the nucleus of the system. Both aspects of the analysis are concerned with liberal politics and psychology, or being and knowing as well as doing and having.
Liberalism does not work internally because the antinomy of rules and values leads to two equally unsatisfactory moralities. The "morality of reason," best represented in Kant's second Critique, offers only very abstract principles of conduct providing little guidance in concrete cases. Notice that this says little concerning the rescuing of Kant in postmodernist theorizing (Ricoeur, Khuen, Ratzinger) -- much of it appearing after the early works by Unger -- focusing on Kant's later works. ("Is it rational to believe in God?")
While the "morality of desire" (Benthamite Utilitarianism or Posner's "Law and Economics") is nothing more than an "inadequate descriptive psychology, toting up desires as given with nothing to say to the individual who wants to know what he should desire." (See Philip Soper's "Book Review of Knowledge and Politics," 75 Mich. L. Rev. 1539, at p. 1540.)
The duality of rules and values leads to the now largely discredited "formalism" and "objectivism" of traditional legal theory or "mechanical jurisprudence."
The distinction between objective rules and subjective values is increasingly seen as meaningless and causes the breakdown of the very structure which it seems to require.
I will now pause to define "formalism" and "objectivism." I will then offer Unger's reasons for rejecting both doctrines:
"By formalism I do not mean what the term is usually taken to describe: ... I mean by formalism ... a commitment to, and therefore also a belief in the possibility of, a method of legal justification that can be clearly contrasted to open-ended discourse about the basic terms of social life, disputes that people call ideological, philosophical, or visionary. [This] formalism characteristically invokes impersonal purposes, policies, and principles as an indispensable component of legal reasoning."
"The CLS Movement," p. 564.
As for "objectivism":
"By objectivism I mean the belief that the authoritative legal materials -- the system of statutes, cases, and accepted legal ideas -- embody and sustain a defensible scheme of human association. They display, though always imperfectly, an intelligible moral order. ... The laws are not merely the outcome of contingent power struggles or of practical pressures lacking in rightful authority."
Ibid., at p. 565.
Unger's rejection of these doctrines is based on the following reasoning:
"[The] ambiguity of words and situations ... [makes formalism absurd.] The problem is not solved when we give up formalism for a theory which holds that the judge must consider the point of the law. In the absence of a procedure for policy decision, the judge will inevitably impose his [her] own subjective preferences on the litigants. [Notice that the liberal thinking that Unger criticizes assumes the "subjectivity" of all values.] A neat separation between the sphere of law and that of subjective value thus cannot be maintained, for legislation and adjudication are the work of concrete persons ... [a] system of laws can neither dispense with a consideration of value [objectivism] in the process of adjudication, nor [can it] be made consistent with such consideration. The subjectivity of values cannot be reconciled with the demanded formality of the law."
Steven Schiffrin, "Liberalism, Radicalism, and Legal Scholarship," 30 UCLA L. Rev. 1103, 1181 (1984).
Unger accepts the American legal realist argument concerning the indeterminacy of law and contends that adjudication and legal advocacy are (or should be seen as) essentially "open-ended forms of discourse." Advocacy in the legal context is similar to ethical debate.
The true test of court decisions is not whether they are legally "correct" in an optimum sense -- since this "correctness" is an absurd goal -- but whether they are rationally and morally defensible, right ethically whether or not they are correct legally whatever that may mean. (Again: "What is law?" then "A Commencement Address for Secretary of State Hillary Rodham-Clinton.")
This position does not involve abandoning ideals of truth and justice. The argument concerns the epistemology of the administration of law and the constant need for humility on the part of decision-makers pursuing moral objectives through the legal enterprise.
Admitting an error is not about deflating monstrously expanded judges' egos. Admissions of errors are aimed at correcting injustices as well as alleviating the unspeakable suffering of PERSONS and even social or collective cruelty produced by such judicial errors or crimes. ("Charles Fried and William Shakespeare On Interpretation.")
At this point Unger's jurisprudence should be brought into a dialectic with the scholarship of more traditional philosophers of law (such as Michael S. Moore and John Finnis) who defend a natural law perspective that also sees the legal enterprise as an aspect of ethics.
Unger goes beyond the realists, however, when he claims that the "jurisprudence of rules" is not only a fraud, but an evil and dangerous fraud. By pretending to comply with the rules, by not recognizing important moral arguments as legally persuasive or conclusive ("the defendant is factually innocent"), by faking professional neutrality and impartiality, by lying about the real reasons for a decision -- the court system and laws help to perpetuate existing social and political hierarchies and subtle, hidden forms of oppression, while persuading their "customers" that this system of domination is unavoidable and fair. ("New Jersey's Feces-Covered Supreme Court" and "New Jersey's Legal System is a Whore House" then "America's Holocaust.")
The goal of a liberal legal system is to teach litigants and attorneys that the possibilities of human association and effective administration of laws have been exhausted in the capitalist system.
The message in contemporary legal systems is always: "We cannot do better than this."
For this pacifying purpose professionals who are highly adept at deflating criticisms and distracting from the system's hypocrisies or dismal failures are developed. Such lawyers thrive in the crevices of the law, just as parasites devour a host organism, usually a cadaver. ("New Jersey's Office of Attorney Ethics" and "New Jersey's 'Ethical' Legal System.")
Charles Fried argues elegantly from a Kantian position against much of what I am saying or what Unger argues. Fried counters Unger's critique in Right and Wrong (Cambridge: Harvard University Press, 1978), pp. 81-108, pp. 167-193. Furthermore, Professor Fried speaks from the experience of a seasoned appellate advocate who has served as U.S. Solicitor General under President Reagan. Charles Fried, Order & Law: Arguing the Reagan Revolution -- A Firsthand Account (New York: Simon & Schuster, 1991), pp. 55-71. ("Interpretation.")
I find it difficult these days to accept the seriousness (or sincerity) of defenses of the "integrity of law" in America. Two of the legal theorists I most admire continue to offer such defenses, no doubt from their very different perspectives in a U.S. legal world quite unlike the one that I have known. Perhaps the greatest work of jurisprudence that I have read is Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986) that argues against my conclusions and Professor Unger's position as does Charles Fried in the above-cited texts. (Please see: "Richard A. Posner On Voluntary Actions and Criminal Responsibility.")
In the American legal process, for example, questions of fact are generally not reviewed on appeal. Only questions of law -- procedural and substantive errors at the trial level -- are considered. Hence, a statement that "Appellant is innocent of the crime of which she was convicted" is unworthy of the attention of exalted appellate judges.
On the other hand good appellate lawyers find a way to say "she didn't do it" by means of highly technical procedural arguments going to obstructions of due process standards under the Constitution. Very often you can get appellate judges to see that an appellant is innocent by "sneaking in" contested facts in support of technical legal arguments directed at "procedural irregularities."
This form of legal argumentation may require appellate courts to abandon, briefly, the process of self-adoration at which most judges are (or become) highly adept.
CLS members and radicals continue to share in Unger's contention that "law is nothing but politics."
Intellectuals working on the margins of America's political process, through advocacy and protest, who are often subjected to horrible forms of retribution by the powerful, including torture and rape -- often secretly -- refuse to believe that history or the evolution of big ideas is at an end or to give up the struggle. ("Justice For Mumia Abu-Jamal.')
"We" do not accept that billions of persons consigned to the darkness of ignorance, hunger, the misery of poverty and illness is just "something to live with." Besides politics there is justice. The massive amount of avoidable human suffering in the world is unacceptable. The increasing feminization of poverty, war, sexual exploitation and misery, for example, is infuriatingly described as "negative side effects of globalization." Obscene amounts of human suffering is the detritus of Modernity. Collateral damage perhaps. To find yourself, as a lawyer, complicit in this continuing atrocity is to become what you should despise. (Again: "Stuart Rabner and Conduct Unbecoming to the Judiciary in New Jersey" and "New Jersey's 'Ethical' Legal System.")
Please see: David Kocieniewski, "After 22 Years in Prison, Man Convicted of Role in Two Murders is Freed," in The New York Times, June 17, 2009, at p. A24. (U.S. 3rd Circuit Court criticized New Jersey's appellate courts as "incompetent" and also "corrupt." For years N.J. prosecutors lied and covered-up evidence of innocence to protect their own careers at the cost of an innocent person's incarceration. "John McGill, Esq., the OAE, and New Jersey Corruption.")
Unger challenges the fundamental individualism of the liberal doctrine. Unger suggests that persons are not always motivated primarily or exclusively by selfish desires. Life is not necessarily (outside of Beverly Hills) about material consumption. Persons need not be driven, as Richard A. Posner suggests, "allegedly," only by the aim of satisfying personal "rational interests" or goals that are defined exclusively in individualistic-selfish material terms.
There is an equally powerful and innate human drive -- often frustrated in modern Western societies -- for community or social identity or altruism.
I wonder whether this means that love is in some sense essential to what we are? ("Is it rational to believe in God?")
For Posner's defense of the "consumer society," see Richard A. Posner, "How I became a Keynesian," in The New Republic, September 23, 2009, at p. 34. (Judge Posner defends the consumer society and, indeed, the "rationality of selfishness.")
I suppose this makes Unger (who certainly would deny this) a kind of Aristotelean-Hegelian thinker whose work may be aligned with the writings of John MacMurray, John Finnis, and others.
I see very clearly the influence of the good Jesuit training that Unger received in Brazil. Thomism and Marxism are equally important sources for Unger's thinking. Stuart Hampshire's mature ideas offer striking analogies to the thinking of Roberto Unger:
"Any conception of human potentialities has to represent a target which is not only always moving, but also in several directions. Any single conception is either too abstract or too general, too lacking in complexity, to count as a representation useful for ethics; or the representation, faithful to the changing and moving target, is too-evidently open-ended, and admittedly provisional, for any final truth to be claimed."
Innocence and Experience (Cambridge: Harvard University Press, 1989), p. 32. ("Stuart Hampshire and Iris Murdoch On Freedom of Mind.")
Unger's speaks of the imaginative transformation of thought (and rules) from "plasticity into power."
Should we base our politics and law on a conception of human nature as a kind of "freedom" that always carries the possibility of redemption and/or social meliorism as well as the risk of evil?
"Jesuit philosophy, on the other hand, assumes not only that nobody on earth is absolutely and hopelessly depraved, but also that all natural instincts and energies contain some good and may be led to good, so that supernatural help will always find something to catch hold of. [Substitute for "supernatural help" the "principle of love."] Although this principle -- as well as any other maxim conducive to life -- may be, and indeed has been, abused, it includes, I believe, an essentially benevolent attitude towards human beings. It encourages [us] as much as possible not to abandon the hope of reaching an understanding with other humans; it prevents us from being convinced with certainty that somebody can personify pure evil; thus it weakens the willingness to hate."
Leszek Kolakowski, "Education to Hatred, Education to Dignity," in Modernity on Endless Trial (Chicago: University of Chicago Press, 1990), pp. 260-261 (emphasis added) then Alasdair McIntyre, Whose Justice? Which Rationality? (Indiana: University of Notre dame Press, 1988), pp. 389-405. ("Contested Justices, Contested Rationalities.")
It is becoming very difficult for billions of persons in the world not to hate their exploiters.
II. The Theory of Personality.
Unger is among the contemporary philosophers and theologians who recognize that a new understanding of the social starting point of human political thinking and identity is needed.
Among philosophers-writers advocating neo-communitarian or postmodernist-communitarian "terms" are Peter Singer, Noam Chomsky, Angela Davis, Cornel West, Carlos Fuentes, Leszek Kolakowski, Jacques Derrida, Paul Ricoeur, Judith Butler and many others.
This is to arrive at Unger's external critique of Modernity which is built on a theory of personality. Unger has clearly read Charles Reich, Jacques Lacan, Michel Foucault and many other social theorists tempering his Jesuit training with the insight that:
"[A legal] movement would rest upon a radical, revolutionary epistemology which declares that our feelings are factual knowledge. I formerly believed that my inner world did not supply me with facts, but was a shadow creation of my mind alone. Therefore my feelings would not be taken in evidence in the court of science or intellectual work or politics or even psychology or education."
Professor Reich's journey of discovery as an elite lawyer in the fifties and sixties -- also as a gay man -- is important because he anticipates many CLS themes.
Among Marxists, Fidel Castro, Ernesto "Che" Guevara, Ernst Bloch, and Herbert Marcuse may be introduced into the discussion as "Critical" or non-scientific Marxists:
"The movement towards politically-aware personal growth offers a philosophy of liberation by seeking the self-knowledge that society denies us. A revolution of such knowledge cannot be prevented by even the most repressive society. Once this knowledge exists it must spread if it genuinely meets our needs."
Charles Reich, The Sorcerer of Bolinas Reef (New York: Bantam, 1977), p. 219 (emphasis added) and Herbert Marcuse, An Essay on Liberation (Boston: Beacon Press, 1969), pp. 52-72.
Unger argues that liberalism has sacrificed the need for social integration for the sake of a cold autonomy. We need liberation from "liberalism." Individual freedom defined very narrowly in market or property terms has become far more important than social justice so that the inextricable connection between these values (freedom, equality, justice) is often not seen or ignored.
Among postmodern communitarians true individual freedom implies and requires the presence of others -- others who are equally free and mutually involved "partners" in projects of social liberation and spiritual realization.
Ronald Dworkin in his late work argues that liberty comes out of a strong conception of equality in a Kantian liberal tradition that is close to Unger's position. ("Ronald Dworkin Says 'The Law Works Itself Pure.'")
Does any of this refer to ideas of love? Can "individuals" really be free without loving (or being loved) by others? Fidel Castro is quoted as suggesting:
" ... love is the personal equivalent of revolution. For most people, it is their only opportunity to intervene forcefully in the lives of others. But while it would be absurd to remind people that 'the duty of a lover is to make love,' we are constantly having to remind them that 'the duty of a revolutionary is to make revolution.' ..."
John Krich, A Totally Free Man: The Unauthorized Autobiography of Fidel Castro (New York: Simon & Schuster, 1981), p. 101. (Please see Jean-Paul Sartre on freedom and the dialectic in his "Search for a Method.")
Is it the duty of a lawyer or judge or legal system to make "justice"?
Law need not be all about winning everything at the expense of the other side. The medieval "jousting" model of litigation may be replaced with a more consensus-building, problem-solving approach, aimed at resolving disputes in a manner that is truly satisfactory to all rather than fostering intense and life-long hatreds or the perpetuation of injustice.
Alternative Dispute Resolution (ADR) is a very welcome and important development in American law. Law suits, like sex or Chinese meals, should never be over until both sides get a "fortune cookie." (See Alec Baldwin's performance in "Outside Providence.")
The inadequacy of the liberal compromise between competing and, ostensibly, irreconcilable values requires that a new plan for social living be developed which will provide for the achievement in politics of necessary cooperation, love, empathy, and the sense of shared purpose experienced by people in families, work units, artistic colonies, and other "organic groups."
An "organic" society cannot be established, however, until alternative philosophies of human nature, politics, and law are fully developed. John Finnis, Natural Law, Natural Rights (Oxford: Clarendon Press, 1980), pp. 371-411. ("Nature, Reason, God.")
All of this thinking leads, necessarily, to a different view of our relations with the planet and other creatures sharing the endangered environment with us. This position often coincides with a feminist and "feminine" understanding of the integration and interdependency of organisms and political-legal forms within shared and evolving networks of nurturing and concern:
Compare Stuart Sim, Lyotard and the Inhuman (London & New York: Totem Books, 2001), pp. 32-66 with Mark C. Taylor, The Moment of Complexity: Emerging Network Culture (Chicago: University of Chicago, 2001), pp. 233-271 and Richard Tarnas, Cosmos and Psyche: Intimations of a New World Order (New York & London: Plume, 2007), pp. 453-491, then Roberto Mangabeira Unger, Democracy Realized: The Progressive Alternative (New York & London: Verso, 1998), pp. 275-277 and Zhinyuan Cui, "An Appendix on Saving and Investment," in Democracy Realized, at pp. 279-287.
For the feminist sources of this stance, see Drucilla Cornell, Beyond Accomodation: Ethical Feminism, Deconstruction, and the Law (New York & Oxford: Rowman & Littlefield, 1999), pp. 1-79 and Judith Butler, Precarious Life: The Powers of Mourning and Violence (New York & London: Verso, 2004), pp. 101-153. (Please refer to my essay "William Godwin and Mary Wollstonecraft.")
For one society's transition to a more communitarian legal model during a difficult phase in its history, see Yua Hua, "China's Forgotten Revolution," in The New York Times, May 31, 2009, at p. A9 and Lijia Zhang, "'Here Come the Workers!'" in The New York Times, May 31, 2009, at p. A9.
By way of comparison how has the U.S. managed post-9/11? Please see: Mark Danner, "Torture and Truth," and "The Logic of Torture," in Abu Ghraib: The Politics of Torture (Berkeley: North Atlantic Books, 2004), pp. 1-4.
Many spiritual traditions share these communitarian values. This is something for those hostile to all religions to ponder. An Israeli kibbuts may be a perfect example of the society that Unger has in mind. Social gatherings in Northern Africa -- where all members of a community, regardless of status, are fed -- or the call to prayer for all persons in Islamic states provide similar examples of Unger's ideal. India as well as China has been aware of these communitarian ideals for many years. Arundhati Roy, "Bhumkal: Walking With the Comrades," in International Socialist Review, May-June, 2010, at p. 30.
Unger contends that liberalism in the West has succumbed to the "antinomies" in the intellectual foundations of the foundational modern liberal theory.
Unger's brand of "postmodern-communitarianism" revives some aspects of classical political thought, as viewed through the prism of Christian Romanticism. Unger is also influenced by his study of classical Chinese law and China's traditions of jurisprudential thinking in Law in Modern Society (New York: Free Press, 1976).
Unger's approach is internationalist, humanistic and communitarian, non-dogmatic, participatory and invitational.
Legal scholars are directed to Mary Joe Frug, "A Postmodernist Feminist Legal Manifesto," in Postmodernist Legal Feminism (New York & London: Routledge, 1992), pp. 125-155. (I also recommend Professor Gerald Frug's essay, as I recall, in The New York Times Book Review, anticipating the revolution in legal theory fusing hermeneutics with feminism, phenomenology with\ Critical theory.)
Unger begins his positive program by suggesting that liberalism falters in rejecting all concepts of universal human nature upon which a new politics can be built. Unger does not wish to return to the "discredited doctrine" of intelligible essences -- i.e., the Platonic tradition -- struggling to chart a middle course between existentialist and humanist psychologies of the subject.
Unger walks a fine line between determinists, whether economic, biological-genetic or otherwise, and free-will theorists of a Kantian, phenomenological-hermeneutic, or other variety. Unger is fashioning a Continentalist version of American pragmatism. Richard Rorty is fused with Cornel West. Richard Rorty, "Persons Without Minds," in Philosophy and the Mirror of Nature (Princeton: Princeton University Press, 1979), pp. 70-129 and Cornel West, "Roberto Unger and Third Wave Left-Romanticism," in The American Evasion of Philosophy (Madison: University of Wisconsin, 1989), pp. 214-223.
Fans of Richard A. Posner should look to: "Legal Reasoning as Practical Reasoning," in The Problems of Jurisprudence (Cambridge: Harvard University Press, 1990), pp. 71-101 then Thomas Nagel, "The Facts Fetish," in The New Republic, November 11, 2010, at p. 30. (Reviewing Sam Harris, The Moral Landscape: How Science Can Determine Human Values (New York: Free Press, 2010), 291 pages.)
Unger is a "compatibilist" arguing that human beings -- though limited by external circumstances and natural ability -- are able to overcome these circumstances and transcend these constraints to achieve a genuine freedom.
Unger sees men and women as living within history but not entirely determined by history. "We are in the world, but not of the world."
Unger is not a vulgar or scientific Marxist who accepts a strict economic determinism -- like Castro and/or Guevara, and many other Latin American Leftist theorists, Unger is closer to Critical or humanistic Marxism. Mao tse Tung may also fall under this category:
"[Only] insofar as human problems and the ways of responding to them are continuous in space and time [can] one ... speak of a human nature and of a universal good ... [men and women] thus live in the space between the permanent and the passing."
Huthinson & Monahan, "The 'Rights' Stuff: Roberto Unger and Beyond," 62 Texas L. Rev. 1477, at p. 1496 (A critique of Unger's work from within CLS.).
Unger hopes to include all of the complexities and paradoxes of human personality within the boundaries of a single theory. He is willing to sacrifice strict logical entailment among the principles connecting his arguments by relying more on aesthetics and religion (or images) than the methods of linguistic philosophy in order to express this intuition of the nature of persons.
Unger's theory combines descriptive and prescriptive elements, joining ideas of fact and value in a difficult synthesis.
Unger argues objectively from history and empirical evidence even as he offers a normative recommendation concerning what persons should become. Unger's "aesthetics of law" is highly rigorous but not analytical philosophy nor something easily fitted into traditional modes of American legal scholarship. ("Where we are now" and "A Commencement Address for Secretary of State Hillary Rodham-Clinton.")
Unger claims that there is a human quality (he is hesitant about the language of "essences") common to persons everywhere and in every historical age. This quality is the need for change -- the "passion" to alter political institutions and social forms that are always experienced, ultimately, as oppressive -- always in the direction of greater human freedom.
Human beings simply are a kind of freedom entangled with other freedoms. ("The 'Galatea Scenario' and the Mind/Body Problem.")
The "essence" of humanity, therefore, is a spirit of revolution contained, for example, in America's Constitutional tradition but also elsewhere in the culture and in tension with powerful forces of control and co-opting. ("Manifesto for the Unfinished American Revolution.")
Our bounded historical natures, immersion in history, Sartrean "facticity" is what Unger calls "the problem of contextuality." (Jean-Paul Sartre)
Persons always feel that social conditions are inadequate. Persons always need/require changes and improvements to their circumstances or "contexts" -- their legal systems, religions, or philosophies. Persons intuitively grasp the idea that all human institutions are flawed or changeable, never perfect and closed. Every Utopia is frozen and dead because Utopias do not evolve and develop. Perfection is unattainable by imperfect humans. A society that regards itself as perfect and beyond challenge -- having arrived at "the end of history" -- quickly resembles Kafka's nightmare world in which a man is tried and convicted in silence because laws cannot be questioned and all legal judgments must be secret. ("Obama Says 'Torture is a Secret!'")
These fears and concerns over legal rigidity seem uncanny after the Bush-Cheney nightmare of paranoia and government criminality. True humanity is defined by this indestructible impulse to revolution "for" social justice:
"[The most important] insight of modern thought is that social structure and hierarchy should be weakened so that human creative potential [meaning capacity for transformation] can be unleashed."
Ibid., at p. 1519. ("'This is totally amazing!'-- Donald J. Trump.")
Basic to Unger's view is a Hegelian dialectical reasoning which attempts to synthesize opposites and incorporate them into an endless circle of change. Even this statement of Unger's thinking is paradoxical:
How can Unger speak of "permanent revolution"? Is there no end-point to history? No arrival of "Spirit"? And how can social institutions ever "change" yet remain "fixed"? More to the point, given Unger's relish for paradoxes why does he object to the "contradictions" of liberalism? Is liberalism philosophically incoherent or absurd only because it is designed to help us "muddle along" in an imperfect world filled with rough edges where the smooth "fit" of flawless and idealized "pictures" of social reality are unlikely to materialize? (See "A Philosophical Investigation of Ludwig Wittgenstein" and, again, "Manifesto for the Unfinished American Revolution.")
These arguments have become popular among a generation of students who have lost any real taste (or capacity) for dialectics (or cogency) for that matter and who have no idea of where these arguments were forged nor by whom they were made.
Young people today are often much too comfortable with the jargon and labels of revolution when they lack the intellectual sophistication or learning to justify their practices or to appreciate from whence they come. (Again: "Where we are now.")
As substitutes for thought there is a false, shallow, trendy set of semi-feminist and illusory progressive labels ("feministing"? "inclusiveness"?) that are spouted, mostly without content, except that -- in their proponents minds -- these labels and slogans ("Whatever") sanction criminality against parental figures or public displays of imbecility. ("'The Scarlet Letter' and the #Me Too Moment.")
This is not transgressive discourse; it is public stupidity that is excusable only in the very young:
"We do not need philosophy" -- political "fashionistas" of all genders say -- "because we are scientific!"
Do not censor or suppress, never deface or mutilate the intellectual and creative work of others. Do not burn books, not even the books you hate. Evil, corruption, racism, abuse of power -- are things more difficult to extirpate from societies than "speech codes" and "awareness sessions" in the school cafeteria would have you believe. ("Is there a democratic right to an elite education?")
Free speech must not be sacrificed at the altar of this week's chi-chi platitudes. Nor should we endanger fundamental human rights concerns, social justice, or precious Constitutional protections of free speech and worship in order to ensure that not one woman over the age of thirteen is referred to as a "girl" -- except by another female person, of course. Life is a little messier and social struggles are somewhat more intense that this P.C. jargon of "inclusiveness" would lead you to believe. ("America's Nursery School Campus" and "Whatever.")
Unger's dynamic conception of human nature -- persons are and must be a kind of freedom -- serves as the normative foundation for a scheme of transformative law and politics.
It would be misleading, however, to imply that Unger merely wants to create a "fluid" ("plasticity") society. Fluidity or dynamism is only one important goal.
Unger is actually interested in shattering all the liberal premises which have frustrated development in order to protect a specific set of ideals. ("Law and Ethics in the Soprano State" and "Senator Bob, the Babe, and the Big Bucks.")
Unger claims that we can reason about ends. There are objective values which can be discovered through practical reasoning. These values are religious without being sectarian because they concern ideas of love and charity leading to concern and/or community. ("John Finnis and Ethical Cognitivism.")
Unger's "good" state is a compassionate society where there is a greater degree of economic equality than in, say, Robert Nozick's "liberal Republic."
If liberalism tilts towards freedom for the individual then Unger's polity would lean toward justice for the community as a kind of collective freedom of equal subjects.
Where to draw boundaries between "freedom" and "equality" or "justice" in community -- even to fall into these terms of discussion -- leads us back to liberalism's dilemmas.
Unger is suggesting a different starting point for legal and political theory in the common drive to unity with others leading to "open" (Karl Popper) public relations in radical democratic institutions constituting a kind of true freedom. From the fundamental capacity for love and friendship in every person towards public forms and institutions respectful of the equal dignity of persons and moved by the suffering of the least powerful members of society. ("John Rawls and Justice.')
Love is both individual and social. Love is a "language" of shared spaces of relations and activities. Love can be one of the languages of our public morality of legal institutions. Do not substitute the word "therapy" for "love." Rather than being anti-individualistic Unger is struggling to redefine the legal idea of an "individual" in social terms. (Hegel, Marx, Sartre's late work, even the Plato-Hegel "hater," Karl Popper, may be quoted in support of these ideas.)
The price usually paid for communitarianism (or collectivism) is the creation of an Orwellian central authority with the power to intrude into every aspect of individual life. Such an authority is already with us in the advanced capitalist societies. Some of us have experienced totalitarian efforts at control and torture rationalized with transparently false paternalistic jargon or absurd slogans concerning "ethics." Few victims of torture and sadism feel more "secure" from terror as a result of their un-pleasant encounters with agents of the state. ("How Censorship Works in America" as well as "Censorship and Cruelty in New Jersey.")
One of the great ironies of the twentieth century is the trajectory of ostensibly Marxist societies from ideals of social justice to the condition of rigid and closed totalitarian states.
One example of this trajectory is the former Soviet Union. Another example is Cuba which is experimenting with greater freedom and openness to ideas in a second movement of its revolutionary symphony despite the continuing threats from the United States. No nation was better at crushing dissent or preventing revolution than the former Soviet Union -- and yet, revolution arrived. Venezuela is experiencing these contradictions as I edit this essay.
No nation is more concerned about preventing terrorism than the U.S., allegedly, abandoning cherished civil rights and Constitutional principles to ensure safety or security. It is possible that the ironies of history will be such as to bring to Americans those very terrorist incidents which we fear and which are made more likely, in my opinion, by extreme law enforcement policies intended to prevent them.
The concern for many Americans is whether the U.S. has or will become a totalitarian society in order to ensure an illusory security from international terrorism.
We cannot protect ourselves from terrorism by becoming terrorists for innocent others such as the "detainees" at Abu Ghraib and Guantanamo, or the peoples of Iraq and Afghanistan, or poor and powerless persons in dismal places like New Jersey and illegal immigrants "detained" in concentration camps in Texas. ("Captured American Tortured on Video by Taliban.")
Unger's goal is to design a structure that will allow for internal development while avoiding the stratification which could lead to domination by any one group.
Unger hopes for a society in which the human spirit is free to evolve and develop while protecting against the cruelties and inequalities likely to result from unfettered liberties to exploit in the name of a dream-like "security," for example, or as a result of the competition or the abuses of the market place. ("Richard A. Posner on Voluntary Actions and Criminal Responsibility.")
I am sure that a brutally "libertarian" society is not what "everyone wants."
Many persons enjoying the comforts of life as affluent individuals in First World states are quite at peace with the thought that their precious comfort is purchased at the cost of the suffering of many "little brown persons" in strange places in the world or in their own country. ("Inummerate Ethics.")
I cannot summarize Unger's complete political theory in an Internet essay. Hence, I will devote some attention to several of his most original ideas concerning law and adjudication while inviting readers to delve more deeply into Unger's mature political philosophy.
"Freedom," Unger suggests, "is worth the risk of insecurity."
"Superliberalism" is Unger's term for his postmodern-modernism, for a creative reinterpretation of rights-thinking: Immunity rights against the state secure personal welfare payments and other government entitlements; destabilization rights permit people to disrupt proceedings in court and eliminate "oppressive" institutional practices wherever they occur, welcoming genuinely transgressive forms of protest; market rights give working people claims to a percentage of capital profits (socialism); solidarity rights entitle persons to receive the support of others in working or study groups (community).
This interlocking network of communitarian rights would leave no area of human life in society beyond the reach of state regulation, also no area of activity is sheltered from disruptive protest by individuals, creating a social setting in which everything can change overnight.
State power is never rigid because individuals can always disrupt bureaucracies or demand reforms of the system.
The Superliberal (postmodernist) state is self-correcting, dynamic, fluid, as elastic and free-flowing as are the lives of persons today. ("Jacques Derrida's Philosophy as Jazz.")
This may be described as a cinematic (Matrix-like) understanding of law and politics that aims to make revolution non-violent and civil.
This is a vision of law for the "Rubik's Cube" societies found in "postmodernity."
The role of law in a Superliberal society is to provide a context or shape (form) for needed changes. No attempt should be made to confine judicial discretion within narrow rules. Rather, "deviationist doctrine" would be available to resolve legal disputes through creative re-interpretations of open-ended statutory schemes and systems of rules.
Cases and other authoritative legal materials would serve only as starting points for debate. The legal process -- when appropriate (i.e., in Constitutional adjudication) -- would move beyond those sources to include political and moral issues. Unger would say that these factors already feature in decision-making, but they are often not recognized, explicitly, as forming a part of judicial reasoning.
Objections may begin with the observation that most judges are highly conservative and may wield enhanced discretion to limit individual due process rights especially against the government or prosecutors.
Unger would suggest, perhaps, that they do this already. Better to engage in such political decision-making explicitly and overtly rather than secretly and corruptly.
Besides, litigants may continue to return to the argument until justice is achieved (or results become socially acceptable) in accordance with these flexible standards.
Judges would be required to articulate "deep" premises to their reasoning -- recognizing ideological biases -- instead of pretending that they impartially follow precedents or broad legal principles. ("What is Law?")
Most of the challenge in America's legal system is discovering the true basis for decisions in any adjudicative process: laws, precedents, policy, or phone calls from politicians or other factors, like bribes in New Jersey, may explain results more adequately or accurately than what is found in the transcripts of proceedings. Often the reasons given for decisions have nothing to do with what is going on or why things are "justified" as happening "on the record." ("New Jersey is the Home of the Living Dead" and "New Jersey's 'Ethical' Legal System.")
Desired, but ostensibly "proscribed" conduct can be generated by social scientists utilized by the system to lend a patina of legitimacy to the state's torture efforts. ("Psychological Torture in the American Legal System" and "Crimes Against Humanity in New Jersey.")
Unger's theory offers power to the powerless to destroy the mechanisms for rationalizing atrocities -- combined with genuine access to media -- atrocities used to generate obfuscation and perpetuate oppression among the subjects of legal systems.
These concepts are only a small part of Unger's larger and still evolving alternative theory. The influence of Marx is more evident and greater in his later work. Human fallibility will always be a factor in what happens in courtrooms.
Unger's theoretical scheme allows for greater room to challenge the legitimacy of the process, or to open the criteria of decision-making in order to welcome humanistic scholarship, social science "facts" (lawyers love "facts"), scientific results, and laboratory evidence or interpretations of findings, statistics as well as ethical arguments.
Judicial decisions would be openly political determinations, under Unger's theory, which they are anyway.
Politics (and such things as racism) simply cannot be removed from American law. The difference is that, with secrecy and hypocrisy, dishonest or corrupt politics often has a determining effect on the administration of laws and would be less of a factor in the CLS "People's Republic."
We forget that America was born in revolution. A jurisprudence of "unfinished revolution" may be just what is needed today. ("Is Western Philosophy Racist?" and "Manifesto For the Unfinished American Revolution.")
The transparency of the political model offered by CLS would result in a more "open" politics of legal decision-making, a legal method subject to genuine debate and revision. The liberal distinction between law and politics would be abandoned.
Enlarged or deviationinst doctrine, therefore, would be the opposite of formalism -- no mechanical jurisprudence only arguments among equals concerning what should be changed, how a defendant should be treated, what has been proved and how things are or should be proven in the future, a wide open discussion within the constraints of logic, respect for evidence, under only the very general guidance of abstract legal texts or rules.
Persons are self-inventing or protean freedoms whose power is this very plasticity of form (revolutionary capacity) found within "selves" then reflected in institutions.
Discretion is a scary word for many lawyers. Absence of discretion is even scarier.
Unger offers us, "allegedly," the best of all possible worlds: a system that provides enormous discretion, but not the discretion to ignore discretion nor to opt out of the process. Unger is not an anarchist. Unger is the opposite of a nihilist. There are obvious problems with these doctrines and with the whole system which cannot be qualified away:
Compare Jeffrey Toobin, "No More Mr. Nice Guy: The Supreme Court's Stealth Hard-Liner," in The New Yorker, May 25, 2009, at p. 42 with Cornel West, "Nihilism in America," in Democracy Matters: Winning the Fight Against Imperialism (New York & London: Penguin, 2005), pp. 25-63.
I like the positive suggestions now more than I did as a law student. Having experienced what can only be described as fraudulent proceedings in what passes for a legal system in parts of America I welcome any effort to "reinvent" U.S. law. I am sure that anything will be an improvement in, say, New Jersey. True, Unger's Superliberalism would make a fitting target for a CLS-style critical analysis.
On a practical level, critics say that the system will not work because, if everything is subject to change and any institutional proceeding can be disrupted, nothing will ever get done. From the point of view of a criminal defendant this is an excellent outcome since he or she will never actually be convicted. More seriously, the boundaries of the process and the doorway to the appellate courts would be set by statute. Flexibility takes place within the context of a functional legal system, favoring flexibility or equity over rigidity or order.
For those who love order, which is usually a code word for oppressive control -- who model society on the prison -- this ideal will not be attractive. For two very different products of the concern with human freedom, see Michel Foucault, Discipline and Punish: The Birth of the Prison (New York & London: Vintage, 1979) and Christopher Norris, Derrida (Cambridge: Harvard University Press, 1987).
For an idea of freedom as the product of dialogue ("this is called dialectics"), see Paul Ricoeur, Critique and Conviction (New York: Columbia University Press, 1998). (La Critique et la Conviction.)
Superliberalism does not work, critics contend, even on its own terms. Everything within the system would be subject to revision or change. However, the Superliberal structure itself could not be changed. If people were to opt for a more stable social arrangement with greater security and more predictable institutional outcomes -- if they wished to return to the devil they know -- Unger's scheme would not allow it.
Unger may respond that those attracted to fascism will find a way to accomplish their objectives, regardless of the boundaries of law.
"The particular state, market, and set of rights that Unger proposes would themselves form a foundational and enduring aspect of his social world. This framework is nothing more than a series of contingent and controversial choices about the proper organization of society. Given Unger's initial premises about the power and pervasiveness of contingency, there's no reason why these particular political deals should be insulated against change. In effect, Unger gives lip service to the ideal of contingency and at the same time claims overriding authority for a particular scheme of human association."
Hutchinson & Monaghan, "Roberto Unger and Beyond," at p. 1519.
Conclusion.
These criticisms are mostly irrelevant to a proper assessment of Unger's work.
Unger's goal is not to propose small practical reforms of the system. Unger is not a legal "handy-man," a modern Jeremy Bentham or John Stuart Mill, proposing modest peripheral reforms of the legal order.
Unger thinks in images. He offers a "vision" of the good society and just legal order. In addition to Marx, one thinks of Augustine and Aquinas, also of the Spanish Jesuits of the Renaissance and counter-Reformation, whose political philosophy is mostly unknown in America. You will also find Locke, Blackstone and Rawls as sources for CLS and for Unger's later Politics.
Unger suggests a new direction for concrete reforms which others involved in the daily struggles for legal justice may implement, refine, alter or reinvent entirely based on need and feasibility.
Philosophers are script writers; practitioners and judges are the directors and actors making the ultimate decisions about what "works" in the epic film that we call "history."
Professor Brownell's statement concerning Santayana's elusiveness and charm should be applied also to Unger's most abstract speculations:
"Poetry was, and still is, the main value of his work to me, and I see now that the delicate and involved dialectic, the turning over and over of lovely abstractions, as one might turn a jewel in the hand, is also a kind of poetry. ... I learned to recognize the sort of thing Santayana offered. It was 'an invitation to think after a certain fashion,' and I sensed, if I could not describe what that [intellectual] fashion was. This interest more in a fashion of thinking than in a system of conclusions and this variegation in the quality of his work, now sensuous, now poetic, now logical or prophetic, makes it hard to pin this philosopher down."
Baker Brownell, "Santayana, The Man and the Philosopher," The Philosophy of George Santayana (Chicago: Open Court 1937), p. 33-34.
Unger's ultimate ambition is nothing less than to resolve the mysterious relationship between love and power. This is a traditional Catholic and also a universally religious or spiritual view of what Aristotle called the "political problem."
Sources in the Hebrew tradition include kaballism, also Spinoza's metaphysics and political concerns. The medieval Islamic philosophers and Sufism are also suggestive for Unger's theorizing.
If it is possible to allow equal say to romantic hopefulness and a sense of tragedy in human passions as expressed in political life then recognition of this mixture is Unger's greatest achievement.
Perhaps much the same may be said of Marx, the ultimate "rebel" Jew, whose motivation (in his own understanding) for his philosophical work was not the existence of great fortunes but the injustice to millions of citizens that made enormous wealth possible for a tiny number of persons.
See Leo Schaya, "The Universal Meaning of the Kabballah," in Kaballah (Baltimore: Penguin, 1973), pp. 116-145 ("The Mystery of Man" and "The Return to the One.") and Eugene Kamenka, ed., The Portable Karl Marx (New York & London: Penguin, 1983), pp. 75-80. ("... Marx is philosophical not only in style, but also in his concerns. His point of departure as a radical is NOT the existence of poverty, but the existence of domination, privilege, and 'contradictions.' ...") then Pope Benedict XVI, Caritas in Veritate: On Integral Human Development in Charity and Truth (San Francisco: Ignatius Press, 2009), reviewed by David Nirenberg, "Love and Capitalism," in The New Republic, September 23, 2009, at p. 39. (Christian democratic socialism.)
The use of Spinoza's term "passion" in Unger's development of a theory of personality is deliberate.
In May, 1980, Unger delivered a lecture at the 133rd meeting of the American Psychiatric Association: "A Program for Late Twentieth Century Psychiatry."
This lecture focused many unusual themes before an audience that may well have been astonished to discover the sources of Unger's radical talk of a "dialectic between love and power," of the reconciliation of "adjustment" and "revolution" in the future of what turns out not to be an "illusion" (Sigmund Freud) religious insight and experience as expressed in the individual's and community's political life:
" ... the passions have no natural structure of social hierarchy and convention, contrary to what the moral and political doctrines of most of the great civilizations have preached. The world of face-to-face relations contains in undefined form all the possible schemes of human associations; in it we can always find inspiration for resistance to the claim that each society tacitly makes to be the natural or the necessary or the best possible ordering of human relationships. ... modernism insisted on the relativity, the ambivalence, and the dynamism of the passions: the presence of love in hatred and hatred in love, of virtue in vice and vice in virtue, the experimental and surprising quality of the life of passion, forcing us at every moment into a transvaluation of our moral preconceptions without inevitably leading us into moral agnosticism. [We are forced to see] lust and despair as passions that not only undermine particular ties and beliefs but that call into question the claims of culture and society to self-sufficiency."
Passion: An Essay on Personality (New York: Free Press, 1984), p. 297 (emphasis added). ("The Allegory of the Cave" and "Master and Commander.")
Community as traditionally understood in political philosophy is unattractive to many people reared in a consumer society and seeing themselves primarily as "customers" making choices among political candidates likened to commercial products. ("Not One More Victim.")
Liberalism leaves us alienated from one another in a society of strangers where "factions" zealously guard their "rights" (understood individualistically) from encroachment while hoarding their piles of gold.
Liberal rights are used as weapons against the claims of all others in society.
The idea of sacrifice "for" the other becomes insane (or incomprehensible) in such a setting.
Rather than seeking social justice individuals may prefer the freedom to pursue exclusively personal satisfactions at the expense of others. ("I want to be America's next top idol.") The word "idol" in that statement is not without religious significance. See Bruce Ackerman's Social Justice and the Liberal State. ("Mana.")
Unger's ideal is also contingent and not universally shared. Unger's genius has been to "undermine the central ideas of modern legal thought and put another conception of law in their place." "The CLS Movement," p. 563.
Given the experience of the past eight years (Bush/Cheney) any hopefulness or idealism is fragile, but welcome. Hopefulness may explain Mr. Obama's candidacy and uneven success, thus far. Perhaps this essay may be seen as one interpretation of what President Obama means by "hope."
I believe that Unger should be read as a theologian or artist as much as a legal or political philosopher.
Unger's greatest value has little to do with the efficacy of any specific suggestions for reforming the tax code, say, in a more equitable direction. Rather, the value of his work (for me) may be found in the critical "picture" of law and politics in modern society that Unger offers to his readers.
There is also the suggestion found in his work of all that is still thinkable and/or possible in human political forms in America. Hope. Faith. Struggle. Like Cornel West, Unger refuses to settle for the ways things have always been done. Roberto Mangabeira Unger & Cornel West, The Future of American Progressivism: An Initiative for Political and Economic Reform (Boston: Beacon Press, 1998), pp. 54-55. (Unger and West provide a philosophical version of the partnership or alliance between Obama/Biden and Clinton.)
Unger insists on imagination in what Habermas describes as the "public sphere." ("Stuart Hampshire and Iris Murdoch on Freedom of Mind.")
Unger's unapologetic resort to examples from China and other countries whose recent legal experiences illuminate the challenges that we all face, his humanism, experimentalism, idealism -- are welcome ingredients as we turn the page on a dark era in America's political history.
Unger's jurisprudential theorizing fits neatly with the work of philosophers Judith Butler, Cornel West, Drucilla Cornell and several others bringing the future into our legal lives a little sooner than expected.
Unger is seeking in Hegelian terms to "comprehend our time in thought."
Contrast Duncan Kennedy, A Critique of Adjudication (fin de siecle) (Cambridge: Harvard University Press, 1997), pp. 339-379 ("Conclusion: Landscapes Along the Highway of Infinite Regress") with Peter Gabel, The Bank Teller and Other Essays on the Politics of Meaning (San Francisco: Acada Books, 2000), pp. 42-43 ("The methodology that would take us beyond Marxism and deconstruction must involve an explicit attempt to overcome the separation of passion and reason ...")
Finally,
"Philosophy is closer to poetry than to science. All philosophic systems which have been constructed as a supreme concord of the final results of the individual sciences have in every age possessed much less consistency and life than those which expressed the integral spiritual yearning of their authors."
Miguel Unamuno, The Tragic Sense of Life (New York: Dover, 1921), p. 2 (emphasis added).
